At what stage the power under Section 319 of the Code of Criminal Procedure is to be exercised by the Court? What is the difference between the powers of the Court under Section 311 CrPC and Section 319 CrPC?

Question: At what stage the power under Section 319 of the Code of Criminal Procedure is to be exercised by the Court? What is the difference between the powers of the Court under Section 311 CrPC and Section 319 CrPC? [U.P.H.J.S. 2009, MPCJ 2009].

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Answer

The provision of section 319, CrPC empowers the Court to proceed against any person not shown or mentioned as accused if it appears from the evidence that such person has committed an offence for which he could be tried together with the main accused against whom an inquiry or trial is being held. It authorizes the Court to issue a warrant of arrest or summons against such person if he is not attending the Court; and, if he is so attending, to detain such person for the purpose of inquiring into or trial of the offence which he appears to have committed.

The proceedings against such person shall be commenced de novo, and the witness must be reheard. Otherwise, the case proceeds as if such person had been accused when the Court took cognizance of the offence upon which inquiry or trial was commenced.

The order under section 319 should be passed at the earliest and at the proper stage and within a reasonable period, not at the time of pronouncing the judgment. In the case of Gopal Krishna v. State of Bihar, 1987 Cr LJ 9 (Pat), where the Court had consumed a period of 17 years, the order was set aside.

Moreover, in the case of Dulichand v. State of Rajasthan, 1993 Cr LJ 827 (Raj) where during the trial of a murder case, the complicity of a few more persons was revealed, and warrants for their arrest were issued to try them along with the other accused, it was held that section 319 CrPC gives ample powers to the Court at any stage of any inquiry or trial of the offence to take cognizance and add any person not being an accused before him and try him along with others.

It has been held by the Supreme Court in the landmark case of Hardeep Singh v. State of Punjab, AIR 2014 SC 1400 that after filing the charge sheet, the Court reaches the stage of inquiry, and as soon as the Court frames the charges, the trial commences, and therefore, the power under section 319(1) of CrPC can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of sections 207/208 of CrPC, committal, etc., which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the pure sense for it only requires an application of mind rather than a judicial application of mind.

On the other hand, the scope of section 311 of CrPC is very wide. It enables any Court at any stage of any inquiry, trial, or other proceedings under the Code to do one of three things:

• to summon any person as a witness;
• to examine any person who is in attendance though not summoned; or
• to recall and re-examine any person already examined.

So far, the section is permissive. But where the evidence of any person appears to be essential to the just decision of the case, it is obligatory on the Court to summon and examine or recall and re-examine him. The section applies to witnesses for the prosecution and also to those of the defence. It is not confined to Court witnesses.

The section confers power in absolute terms. Where the Court exercises power under the second part of the section, the inquiry cannot be done whether the accused has brought anything suddenly or unexpectedly but whether the Court is right in thinking that the new evidence is needed by it for a just decision of the case. In the second part of the section, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the Court is right in thinking that the new evidence is needed by it for a just decision of the case.

The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision in the case.

In Ranjit Singh v. State of Punjab, AIR 1998 SC 3148, the Court summarized:

“So from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 of the Code, that court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked.”

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